EEO: Disparate Impact

Even where an employer is not motivated by discriminatory intent, Title VII prohibits an the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.

Supreme Court Cases

The Supreme Court first described the disparate impact theory in 1971, in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971): Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

In 1989, the Supreme Court reduced the defendant's burden of proving business necessity to a burden of producing evidence of business justification. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). The Civil Rights Act of 1991 overturned that portion of the Wards Cove decision.


Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.

Allocation of proof

Selection Criteria